Flying On The Railroad Tracks: The Railway Labor Act - Time for a change

Article
Oct 1, 2001

Flying on the Railroad Tracks

The Railway Labor Act — Time for a change?

By Stephen P. Prentice

October 2001

Airline technicians, like all union employees in the air carrier business, are subject to the rules of the Railway Labor Act. The business of writing a new contract with the employer can be a long and painful process. Part of the reason is this archaic federal labor law that controls the process.

History The Railway Labor Act (RLA), created in 1926, originally applied to the railroads, and was drafted under a broad governmental mandate to regulate interstate commerce. It was designed to prevent or delay the onset of strikes by providing a framework for peaceful settlement of labor disputes. This was the Federal government’s first attempt at regulating labor/management disputes.
In 1936, the law was extended to cover air carriers primarily through the efforts of Dave Behncke, the founder of the Air Line Pilots Association (ALPA). He observed that the RLA was designed to prolong the negotiating process at every turn and provide for extended arbitration and mediation. Mr. Behncke believed that it would be useful to labor for successful negotiations.
Congress felt that the transportation of people and cargo should not be interrupted by labor disputes and strikes if they could be settled by negotiation and mediation. The law in 1936 provided for the creation of various boards to adjust and settle disputes. The National Mediation Board (NMB) administers the RLA. Further down the negotiation line, there is a provision for the President to appoint Emergency Boards when there are significant threats to transportation.

Northwest
During the recent Northwest technicians’ dispute, our President said he "would take the necessary steps to prevent airline strikes from happening this year." He signed an order for the appointment of a Presidential Emergency Board (PEB) two days before the technicians’ strike deadline and named a three-member board to resolve the issues. The result was another delay of 90 days or so before a strike could occur. As we all know, the dispute was settled.
Northwest’s union, AMFA, would characterize the President’s action as interference with the normal course of collective bargaining. Many others in the labor movement agreed.
In regard to this subject, Francis Perkins, Secretary of Labor and the first woman to hold a cabinet position, said in 1938, "Collective action for both workers and employers must be free from external compulsion if they are to achieve a common basis of understanding and co-operation." Mrs. Perkins felt that there should be no interference with the bargaining process.
Labor’s strike leverage is weak at best when threatened with any kind of unnecessary intervention. As soon as the President made his statement, he created serious threats to the process. By simply suggesting that he might step in to invoke the creation of an Emergency Board, he made the possibility of reaching agreements more difficult.
Under the RLA, strikes are essentially prevented until all the administrative steps in the RLA are exhausted. This could, and did, take years in some cases. Even after all this, the President can still halt a strike.

Comair
In another recent example, Comair had been in negotiations with management for almost three years! The RLA procedures had moved slowly toward a strike deadline. In this case, however, the powers-that-be decided that it was more political to have a strike than force a delay. This strike action by the pilots occurred after the lengthy procedures of the RLA wound down to the moment of truth. Nothing was done to delay the deadline, so the inevitable strike followed. Technicians at Comair continued to work and were not affected by the pilot strike.

The problem
When invoked for a major dispute, the RLA imposes upon the parties a legally enforceable obligation to refrain from altering their status quo while the Act’s continuing process is being exhausted. Herein lies the basic problem with the RLA. Many, in both labor and management, feel that it takes too long to reach a conclusion. Labor and management suffer and the flying public suffers through concern over slowdowns, delays and the uncertainty of service.
Still, there are effective elements of the RLA. The directed grievance procedure, mediation assistance by the government and the mandatory arbitration requirements are useful tools. But, it still takes too long to get results from them and to resolve the differences.

RLA 101
The RLA settlement process starts with a determination of the type of dispute that exists. A major dispute involves the formation of a new bargaining agreement or substantial alteration of an existing one, usually involving new rights. A minor dispute simply involves the interpretation of an existing agreement and it is directed at rights already vested. Negotiation sessions go on until either party thinks there is not enough progress. A request under the RLA to the NMB for mediation follows. Mediation is simply a discussion process in an attempt to bring the parties together.
The RLA sets out entirely different procedures for the settlement of the two types of disputes. The most important procedural difference is that a major dispute imposes on the parties a legally enforceable obligation from altering the status quo while negotiations continue. A minor dispute is silent on this point and it is generally held that the parties need not maintain a status quo pending the resolution of a minor dispute.
As time goes on in the mediation process, the NMB can decide that there is no basis for settlement and then order binding arbitration. Either side can reject the binding arbitration at which time the Board declares that a state of impasse exists. Imposition of a 30-day cooling off period follows. It is only after this time period passes that the parties are forced to make decisions. The original contract is still in place under the status quo rule. It remains effective until a settlement is reached.

Binding arbitration?
Board awards on grievances submitted by
employees are always binding and final as to the employee. Employees must be willing to give up all appeals and any other remedies outside of the RLA statute when they seek relief under the RLA scheme. The other side of this coin, which seems unfair is that if a carrier loses in the Board proceeding, they have an opportunity under the law to re-litigate the issues decided by the Board in a U.S. District Court, but in this action, they are bound by the findings of the Adjustment Boards Order. As has been said in several court cases, "—the disparity in judicial review of Board orders was explicitly created by Congress, and it is for Congress to say whether it ought to be changed—"

The strike
It has been said that the strike threat is the only real power that the worker has to balance the inherent power of the employers. The process of endless negotiation has to be balanced against the threat of a strike. For example, after all the negotiations and threat of a strike in the Northwest technicians’ dispute, no strike occurred. A good thing? Maybe. But, we have to keep in mind that the President was about to step in and said that he would prevent such a strike. This statement took away a major bargaining chip from the technicians. Is it any wonder that they settled?
Many would suggest that absent the real threat of a strike, a company would not put forth its best deal. Again, the only real leverage that a worker has is the threat of a strike. When a company is shut down and no profits are rolling in, the incentive to provide an acceptable deal is compelling.
A strike is not always a bad thing. They should not necessarily be avoided at the cost of presidential intervention. Indeed, the very mention of the President stepping in is usually sufficient to force employees to settle.

National Labor Relations Act
The National Labor Relations Act (NLRA)
is the other effort by the federal government to aid labor and management in their disputes. The National Labor Relations Board administers the NLRA. It came along after the RLA and attempted to dispose of all the bad points in it. For example, one of the fundamental differences between the two laws is that under RLA, labor contracts continue indefinitely until amended. Contracts under the NLRA on the other hand, expire at a certain date. When a contract governed by the NLRA expires, the employees are free to strike. Therefore, there is a sense of great urgency to get the settlement job done. This sense of urgency does not exist under the RLA in the transportation industry today. Negotiations continue with no firm deadline in sight. This lack of urgency in RLA procedures simply means that no meaningful settlement offer will be on the table until many months go by.

Solution
What is needed is obvious. A date certain that would terminate endless negotiations. The NLRA provides this mechanism. If our airline industry was regulated under the NLRA instead of the RLA, they could concentrate on fixing their schedules and other internal problems without the constant concern with labor woes. With a date in place, there would be a strong incentive to provide a realistic settlement offer by both sides. As the contract termination date gets close, the parties would be motivated to reach an agreement.
Maybe if the Congressmen and women are inconvenienced enough at the big airports, they will find that lost bags and late schedules are not the only things that need fixing in the industry.